Question

Marianna Cole and Lydia Moore were coworkers employed by the ACE, Inc. to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole’s credited testimony, Moore often criticized other employees during these communications, particularly housing department employees who, Moore asserted, did not provide timely and adequate assistance to clients. Other employees similarly testified and Moore spoke critically to them about their work habits and those of other employees. This “criticism” issue escalated on Saturday, October 9, 2010, a non-workday, when Cole received a text message from Moore stating that the latter intended to discuss her concerns regarding employee performance with Executive Director Lour Iglesias. Cole sent Moore a responsive text questioning whether she really “wanted you to know ... how u feel we don’t do our job ...” From her home, and using her own personal computer, Cole then posted the following message on her Facebook page: Lydia Moore, a coworker feels that we don’t help our clients enough at ACE. I about had it! My fellow coworkers how do u feel? Four off-duty employees—Dame Rodriguez, Ludi Rodriguez, Yaritza Campos and Carlos Ortiz— responded by posting messages, via their personal computers, on Cole’s Facebook page; the employees’ responses generally objected to the assertion that their work performance was substandard. Moore also responded, demanding that Cole “stop with ur lies about me.” She then complained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias’ request, Moore printed all the Facebook postings, Iglesias dis- charged Cole and her four coworkers, stating that their remarks constituted “bullying and harassment” of a coworker and violated the ACE’s “zero tolerance” pol- icy prohibiting such conduct.

Questions:

1. Are these employees engaged in a protected concerted activity?

2. If ACE had terminated Moore also, would a protected concerted activity be involved?

3. Does it matter that a union was not involved?

4. How should the NLRA rule? Why?

Answer 1

1. Yes the employees engaged in a protected concerted activity. The Facebook posts clearly constituted protected concerted activity mainly for mutual support and aid and protection and hence under the protections of 7 of the act.

2. It totally depends on the cause of termination. The five other employees were terminated on the basis of disciplinary actions. IF Moore would be terminated in the case above for disciplinary action, then it would not be under protected concerted activity.

3. It does not matter that a union was not involved in this case the group took up Facebook shall be considered as the first step towards taking group action clearly to defend themselves against criticism from Moore which the group could easily believe that will be taken up to the top management. So in retaliation, the group took up Facebook jointly challenging it.

4. The NLRA should rule in favor of the 5 terminated employees. The NLRA should completely reject the employer's harassment policy defense clearly because if employees engage in concerted activities for mutual aid and protection, those activities cannot be the basis of discipline, even if other employees are offended by the concerted activity.